On Tuesday, France’s Minister of the Digital Economy, Fleur Pellerin, formally accepted the 67-page report (PDF) published earlier in the month by the National Digital Council (Google Translate), a government advisory body known by its French acronym, CNN.

Net neutrality is a particularly salient issue in the country, given the recent dust-up between Free (the country’s second-largest ISP) and Google.

However, digital rights advocates worry that what’s been proposed in France is “toothless,” as it doesn't include possible sanctions for companies that would violate the proposed net neutrality provisions. Others point out that the report seems to have carved out a massive loophole for so-called “illegal” content or material online.

Pellerin has said (Google Translate) that she will propose new legislation next year, but as the report itself notes over the course of 20 pages, there have been numerous false starts with respect to net neutrality in France in recent years. There's already a pending bill (Google Translate) in the French National Assembly, which was introduced late last year.

The new report seems to largely re-iterate what's been proposed in the past.

This collection [of ideas] is built around the founding principles of the Internet, one of which its most important concepts is that of “net neutrality,” which was developed to forbid discrimination by the sender, recipient, and irrespective of the content of the transmitted. Its purpose is to ensure the ability of users to access content, to transmit content, and to use the services of their choice, while avoiding [providers] that block or slow down or prioritize one service over another. Limiting the anti-competitive nature of these practices, the principle of neutrality is at the origin of the successes of the Internet and the development of a very rich ecosystem for creativity, which draws many startups [that are] constantly inventing new services.

The Dutch model

“The fact that the opinion is to only inscribe in the law a ‘principle’ without describing infractions and penalties and the place where it shall be written is what makes it toothless and probably makes the telcos not so worried,” said Jérémie Zimmerman, of La Quadrature du Net, a Paris-based activist group, in an instant message chat with Ars.

“Such a principle written in the law will leave everything to the judge, from defining what actually is discriminating, or an unfair network management practice to what the harm it causes is, to what link there is between discrimination and freedom of expression. This is a hard case to make and it would take ages, with all appeals and [adequate] jurisprudence.”

Zimmerman added that what his group wants is simple: merely a new law similar to what was adopted in the Netherlands.

“[We just want] something in the telecommunications act to say, 'restricting communications based on the sender, or receiver, or type of data is illegal, and if you do it, you’ll be sanctioned,'” he added. “Except for the security of the network and its users, or temporary and non-foreseeable congestion. That’s what we call effective protection of net neutrality.”

Dutch Internet advocates worry too that the French proposal doesn’t go far enough. Marietje Schaake, a Dutch social liberal member of the European Parliament told Ars that while she is “excited” by the prospect of net neutrality policy from other EU countries, she would prefer an EU-wide policy. “The proposals from France sound quite different from the ones we enshrined in law in The Netherlands,” she told Ars by e-mail.

“The French proposals mix several concepts. Some of the plans seem to want to curb certain strong players such as Google, and they also link net neutrality to free speech. I am in favor of as much free speech as possible, online and offline. But net neutrality is about non-discrimination in transmitting data. We have learned that the EU's preferred parameters to guarantee net neutrality—transparency and competition—do not provide for a strong enough safeguard. BEUC, the consumer rights organization in Europe, has researched and concluded that consumers do not have a real choice to shift telecom operators and Internet service providers. The French proposal speaks of 'anything that is legal,' the question is who ought to assess [it?] I believe [this question] should be [a judge, and not a] private company.”

In short, it’s not enough to let companies figure out how to implement these principles on their own.

“It is remarkable—not only do French politicians have no problem with privatizing regulation of freedom of expression, but [they] have no problem with this being privatized in the hands of foreign companies like Facebook, Microsoft, Google, et cetera.” quipped Joe McNamee, of European Digital Rights.

The thorny issue of “legality”

Indeed, even French Internet users have called into question a line on the second page of CNN’s report, which required service providers to guarantee access “to all that is legal.” The 67-page document does not get into specifics of what it means by “legal” or “illegal” material or content.

But as French tech news site Numéramapoints out (Google Translate), “[that] opens up the possibility of distinguishing within the same data stream what is legal and should remain neutral and what is illegal and can not be treated as neutral. Or simply to distinguish the legal from the illegal is a violation of neutrality. Or, that the simple fact of distinguishing between legal and illegal is an attack on neutrality.”

A Dutch IT lawyer, Arthur van der Wees, told Ars that such an approach can be “potentially very dangerous” as it could set up a mechanism for censorship, analogous to the controversial CleanIT Project.

“So, trying to pin down and define what ‘anything that is legal’ means (as per Page 2 of the report), will always be unsatisfactory for one or more parties or end users,” he wrote. “Trying to get to a binary split between good and wrong will not work, and in my view will lead to imbalance and may lead infringement of basic human rights. In short, this French initiative is to be closely monitored. So far in the Netherlands, the new law on net neutrality has—to the extent I know at this time—not lead to strange outcomes or abuse. But then again, it has only been implemented 2.5 months ago, so it is a bit too early to celebrate.”

Cyrus Farivar
Cyrus is a Senior Tech Policy Reporter at Ars Technica, and is also a radio producer and author. His latest book, Habeas Data, about the legal cases over the last 50 years that have had an outsized impact on surveillance and privacy law in America, is due out in May 2018 from Melville House. He is based in Oakland, California. Emailcyrus.farivar@arstechnica.com//Twitter@cfarivar